27/01/2020 – Jurisdiction Ontario
Part 69 published on 01/03/2020
Appeal Dismissed. Condominium corporation treated owner oppressively after granting permission for common element modification
The owner had sought permission to modify the common elements by creating an opening between two units (in order to convert the two units into a single living space). The Court held that the Board had granted the requested approval, but had then improperly and oppressively treated the owner more harshly than other owners in similar situations. Among other things, the Board had asked that the required agreement between the corporation and the owner (under Section 98 of the Condominium Act, 1998) contain a provision that the Court felt was oppressive. The Court ordered that the parties enter into the agreement without the oppressive provision and also awarded $10,000 in general damages to the owner. [See Condo Cases Across Canada, Part 65, March 2019.]
The condominium corporation appealed, and the appeal was dismissed. The Court of Appeal said:
The Condominium renewed before us the argument that the court has no business making an order prescribing the terms of the s. 98 agreement. The parties should be left to negotiate the terms of the agreement with the Condominium retaining its complete discretion. We reject this argument. The application judge provided relief from oppression, a remedy that is broad and flexible. The application judge described in para. 83 an attitude on the Condominium’s part that “shows targeting and ill will”. The Condominium had provided s. 98 agreements to the other unit owners who had completed alterations but the one prepared for the Nogueras to sign was both onerous and different. It is not surprising that the application judge declined to give effect to the Condominium’s argument. The evidence supporting her view is overwhelming. The application judge’s remedy served to rectify the Condominium’s oppressive conduct, which seeped through all its actions, including its approach to this litigation. The Condominium’s real interests were entirely protected by the s. 98 agreement ordered by the application judge, which simply incorporated the conditions imposed when the Board originally approved the Nogueras’ proposal.